Malpractice in Advanced Nursing Practice a Closer

Malpractice in Advanced Nursing Practice A CLOSER LOOK Legal/Ethical Principles When nurses pursued independent practice outside hospitals, the law supported their bid to breach traditional roles (Kjervik & Brous, 2013). This phenomenon was described as a form of "growing militancy" that refused to stay under the dominion of medicine (Baer, 1993 as qtd in Kjervik and Brous).

Ethics supported the accompanying empowerment of the militant act as in expressing autonomy in practice, beneficence and care-based ethic in doing what they see as best for patients, and justice or fair treatment for patients and all providers involved. The earliest practitioner program was designed in 1965 by Loretta Ford and Henry Silver in their response to the lack of primary care physician at the time. The program emphasized primary care in health promotion and disease prevention. The idea caught and more primary care providers increased.

This is why many of the first court suits involving advanced practice nurses or APNs were APNs and other working in acute care facilities. These court suits were connected either to their expanded roles and privileges or their relationships with physicians concerning antitrust and insurance and supervision by physicians. The APNs' expanded role and privileges come under a standard of care. This legal standard for a health professional fixes the expected performance of a nurse. But this expectation evolves as clinical practice changes and nursing roles expand.

One set of cases in this category concerns negligence. Negligence is failure to meet the set standard of care, which leads to patient injury (Kjervik and Brous). Malpractice in Nursing As malpractice suits increase against APNs, they need to be more knowledgeable about the fundamentals of nursing malpractice (Walker, 2011). These include their liability, options with malpractice coverage, their future role, and legislative issues like tort reform. Sources of help include their employer- organization, professional associations, schools and colleges of nursing and State and national regulating bodies.

It was gathered that APNs extend care by phone from 20-30%, which exposes their patients to a liability never before noticed and considered. In trying their cases, the court will look for a reasonable response. This can come from formal policies and procedures, testimony of experts and by evaluating local and national standards related with causation and injury. Nursing practice is not only a career but also a scientific process, which evolves with healthcare advancements and public policy (Walker).

Causation and Negligence Causation is one of the elements that constitute negligence (Turton, 2009). This is an idea that links the claimant's loss to the defendant's negligent behavior. Among the recently established exceptional approaches in determining factual causation is a causal process. It must be identified in every case so that the correct test for establishing factual causation may be applied. If the negligent behavior or negligence consists of mis-diagnosis or mistreatment of an illness, the causal problem is medical in nature and thus calls for a unique approach to causation.

If the negligence in question is a failure to caution the patient about the risks of treatment, one cannot establish liability without factual causation (Turton). Quality of Care and Negligence Litigation (Studdert et al. 2011) Are high-quality healthcare institutions sued for negligence less than lower-performing institutions (Studdert et al., 2011). A group of tort claims filed against 1465 nursing home from 1998-2006 was gathered for investigation from the Online Survey, Certification and Reporting System and the Minimum Data Set Quality Measure/Indicator Report.

Investigation revealed an inverse relation between nursing home performance and litigation. The levels of litigation were only fractionally lower for the best-performing nursing homes than less-performing nursing homes. Earlier research already explored the relationship between the quality of healthcare and the risk of negligence litigation. But the question remained if the delivery of high-quality care reduces the risk of suit (Studdert et al.). Findings raised questions on the capacity of tort litigation to offer incentives in improving the quality and safety of a nursing home care (Studdert et al., 2011).

There was no clear evidence to suggest that superior performance is rewarded with substantial lower risks of suits. Ongoing long-term care sector policy directions, such as public reporting of performance indicators and provide performance-based payments, may be rewarded for making nursing homes safer places for patients (Studdert et al.). Nurses at the "Sharp End' The demand for patient care is heaviest on nurses, among all health professionals (Hughes, 2008).

When that care falls below standards -- for lack or shortage of resource allocation, appropriate or adequate policies and standards -- the nurse is made responsible most of the time. The recognition and an understanding of this complex environment and implementing ways of improving its effects is equivalent to providing high or higher-quality and safer care. The fact is that healthcare is provided in an environment where interactions of myriads of factors take place. The disease process, patients, clinicians, technology, policies, procedures and resources collide each day.

When they do, all kinds of outcomes occur, including human error. Human error has been defined as the failure to accomplish a goal, plan or outcome. Human error is also the product of failed mental processes or cognitive ability. Human error, the object of malpractice, is the product of active or latent factors. Active factors emanate from systems factors, which produce immediate events and involve operations, such as clinicians. Latent factors are those inherent in the system.

Examples of latent actors are a heavy workload, organizational structure, and the work environment. Latent factors or conditions are strewn throughout healthcare and inevitably. Hazards and risks can be reducing by tackling the root causes. Tackling them will lead to latent defects in the organization, leading in turn to leadership, processes and culture. Organizational factors have been called the "blunt end" where the majority of errors or negligence, can be traced back ultimately. Clinicians, including nurses, are considered the sharp end.

To prevent errors of negligence and malpractice suits, the organization should be adapted to the cognitive strengths and weaknesses of human beings who work. The most important strategy lies within organizations and their systems of care (Hughes). Mental functioning is largely automatic, fast and without effort (Hughes, 2008). Many errors occur from errors of thinking alone, which affect decision-making. A nurse's ability to always render logical and accurate decisions and assure patient safety is exposed to complex factors.

These factors include one's knowledge base and systems factors, the availability of needed information, workload and barriers to these. The effects of these factors influence and complicate the increasingly complex nature of a nurse's roles and responsibilities, the complexity of preventing errors harming patients, and the availability of resources. Errors have been classified according to the adverse events. These are incidence reports, individual blame and system causes (Hughes) The complex factors in the occurrences of errors and adverse events are exemplified in medication safety (Hughes, 2011).

Studies found that between 3 and 5% of medication errors emanate from medication administration. The nurse must be watching that it does not happen. Administration errors from human factors include performance knowledge deficiencies, fatigue, stress and understaffing, the major factors for errors committed by nurses. Surveys say that administering medications can use up to 40% of the nurse's working time. Errors in medication administration have also been traced to a lack of concentration, distractions, increased workloads and inexperienced staff.

This brings to mind that medical administration errors can also emanate from systems factors, such as poor leadership, mal-distribution of resources, poor organizational climate, and the lack of standard operating procedures or SOP. And when errors occur, these deficiencies are viewed as mistakes, violations, and evidence of incompetence. Violations are to be viewed as deviations from safe operating procedures, standards, practices and rules. They can be routine and necessary or entail some risk of harm.

Human susceptibility to stress and fatigue, emotions, and sharp or dull cognitive abilities, attention span, and perception can and do thereafter influence problem-solving abilities (Hughes). Negligence, Malpractice and the Changed Role of the Nurse The Kansas Supreme Court ruled in 1964 that the primary function of a nurse was only to observe and record patient symptoms and reactions (Abramson & Dugan, 2013). She was not to diagnose or treat these symptoms. If she failed in extending due care, she could be held liable for negligence but not malpractice.

Two-decade hence, the New York Court of Appeals rejected and revised this ordinary negligence standard for nurses. It ruled that her role has changed from a passive employee to an assertive and decisive healthcare provider. Today, she monitors complicated physiological data, operates complex lifesaving equipment, and coordinates the delivery of several patient services. With a new recognition of the scope of her practice, the court decided that a nurse can be sued and sentenced for malpractice.

Henceforth, any negligent act or omission by her in the course of providing professional services may be construed as malpractice (Abramson & Dugan). Nursing Malpractice The standard of nursing care is one of reasonable professional practice in existence at the time the disputed medical care was provided (Abramson & Dugan, 2013). If a nurse specialist, her conduct should be compared with the reasonable practice of a similar or equivalent specialist. In addition, the courts recognized the extent of her role in patient care.

While she may not modify the course of treatment set by the physician, she may consult nurse supervisors or other physicians to discuss her difference in view from the physician on the treatment. She may also communicate changes in the patient's condition to the physician and may do more if she is not appropriately or sufficiently advised. Acts or omissions, which constitute a breach of the nursing standard of care, can make her liable for malpractice.

An example is failure to observe a post-operative patient at least every 15 minutes for the first hour.

Other less serious examples of nursing malpractice are the failure to take the vital signs of a post-operative patients, failure to delay a patient's discharge while having high fever; the failure to delay a patient's discharge when he has high fever, the failure to recognize signs of neonatal hypoglycemia, the failure to correctly monitor a patient's blood sugar level, and the failure to call for additional help in bringing a post-operative patient from the bathroom back to bed (Abramson & Dugan).

Regulatory Body and Complaints Procedure: a Solution Regulatory boards of the professions whose members are of good standing are set up to monitor professional activities primarily to insure and protect public safety and welfare ((Hudspeth, 2009). The regulatory body that monitors nurse practice is the Board of Nursing of 47 jurisdictions. Boards of Nursing or BON aim at regulating the activities of nurses, including nurse practitioners, for the protection of the public and not to promote the nurses' needs.

The Boards monitor educational programs that prepare nurses for licensure; evaluate applicants for licensure through appropriate procedures; monitor clinical practice standards to keep them within accepted practice; and they apply the disciplinary process to assure that problems are appropriately addressed for the protection of the public (Hudspeth). Types of Complaint Complaints fall into four broad categories, namely exceeding or breeching SOPs, drug or substance diversion or use, ethical and moral issues, and criminal activity (Hudspeth, 2009).

They are also categorized into 7, namely, practice-related, drug-related, boundary motivations, sexual misconduct, abuse, fraud and positive criminal background checks (NSCBN, 2012). A common SOP for the registered nurse applies to all regulatory jurisdictions but not to the SOP for the Nurse Practitioner or NP. NP education and certification are more uniform than the SOP in separate jurisdictions. Thus, the variability in SOP can confuse the NP in what she can or cannot do. Drug diversion ia often the issue that comes up when discipline is discussed.

This complaint rate has been growing proportionately to the increases in the overall profession. Complaints in this category include violations of State and federal narcotics or controlled substance laws. Inappropriate or excessive alcohol use is closely linked to drug diversion. It is a violation when alcohol use puts the patient at risk or when it affects clinical judgment. Ethical, moral, and boundary violations raise the chances of harm for patients.

These violations include moral turpitude, abuses under the Medicare or Medicaid programs and court findings of the NP's mental illness or mental incompetence. Criminal violations, such as felony convictions, are handled by the judicial system and can affect the NP's license. These violations include discipline in another jurisdiction, license fraud or imposter, court conviction, being on court-ordered probation, and failure to comply with license or certification requirements (Hudspeth, NSCBN). The Complaint Process The process begins with complaint reporting (Hudspeth, 2009). Complaints filed with the BON come from different sources.

Physicians are the most common source of complaints about exceeding the scope of practice. Colleagues or supervisors are the most common complainants about the use of sample medications; the pharmacy, about prescriptions of controlled substances; and colleagues or supervisors, about inappropriate or excessive alcohol use (Hudspeth). When the complaint is filed, it goes through a review on whether there is a violation of existing laws or regulations in nursing practice (NCSBN, 2012).

There should also be sufficient information on the identity of the nurse or if she is actually a nurse over whom the Board has jurisdiction. If the issue is within the Board's authority, evidence is gathered and interviewed conducted. The investigation process varies according to the seriousness of the allegation and the timeliness of the complaint. This process may include obtaining additional documents or information from the complainant, the nurse's written response to the complaint, and full investigation. This last phase can include site visits and interviews with witnesses ((NCSBN).

When sufficient information has been obtained, the proceedings start. These consist of giving the nurse the chance to respond to the complaint against her and to give her side (NCSBN, 2012; Hudspeth, 2009). If the Board decides that disciplinary action is warranted, it decides on what type of action to take. Aspects often considered are the level of risk, suspension of the nurse and mitigating or aggravating factors. Every jurisdiction has its own process. In many jurisdictions, the case is assigned to a BON investigator.

The investigation takes an average of 1 year or sometimes longer in jurisdictions with larger volumes of complaints to deal with. Other factors are the complexity of the investigation, the level of public risk, the availability of witnesses, and if the NP has a legal counsel. No public disclosure of the complaint is made during the investigation to protect the nurse's rights (Hudspeth, NCSBN). During the investigation, the Board is guided by two considerations (Hudspeth, 2009). The NP's standard of practice is compared with the accepted standard.

And the Board must protect the NP's rights under the U.S. Constitution to due process and assure that she is not wrongly or unjustly deprived of her license and the public of care. The level of evidence and the standard of proof are the criteria. The lowest level of burden is the preponderance of evidence, which requires a 51% likelihood of the violation as having occurred. The intermediate level burden requires it to be clear and convincing to justify the removal of one's professional license.

And the highest level of evidence is the "beyond reasonable doubt" concept, which requires a 90% likelihood of the violation occurring. Most NP violations are tackled at the lower or intermediate level where the resolution does not have monetary value but requires less than a life-and-death consideration (Hudspeth). Complaint Resolution A complaint can be dismissed on certain grounds (Hudspeth, 2009). It may be for lack of merit, insufficiency of evidence, legal technicality or breach of due process.

When BON decides it has merit, it is transmitted to a disciplinary review body or the BON attorney. There are a number of ways of resolving the complaint. The attorney and the BON staff may negotiate a settlement with the defendant nurse. If it is acceptable to her, it is endorsed or rejected by the BON and then made final. A second option is bringing the complaint to a disciplinary body or a judicial hearing officer endorsed or rejected by the BON.

The third option is common in smaller and rural jurisdictions, which have fewer cases of this kind (Hudspeth). Disciplinary Action The disciplinary action may be a letter of caution, a letter of reprimand, restriction, probation, suspension of license, revoking of license and.